The essential ingredient of the offence under Section 7(1)(a)(i) of the Cinematograph Act, 1952, is either an exhibition of an uncertified film or a permission for such exhibition. The mere stocking of pornographic video cassettes in a shop is not an offence.

( 1 ) THE Court : In this application the writ petitioner prays for stopping of any further investigation pursuant to an F. I. R. dated 10. 8. 88, a copy whereof is at page 25 of the annexures to the writ petition. According to the said Report four film of pornographic nature were seized from the video shop of the writ petitioner. It is stated in the said F. I. R. that the same amounts to an offence under section 7 (1) (a) (i) of the Cinematograph Act, 1952.

( 2 ) THE said section is reproduced below :"7. Penalties for contravention of this part. . . . . . . . (1) if any person- (a) exhibits or permits to be exhibited in any place-- (i) any film other than a film which has been certified by the Board as suitable for unrestricted public exhibition or for public exhibition restricted to adults (or to members of any profession or any class of persons) and which, when exhibited, displays the prescribed mark of the Board and has been altered or tampered with in any way since such mark was affixed thereto. "

( 3 ) A bare perusal of the above sub-section shows that the essential ingredient of the offence is either an exhibition of an uncertified film or a permission of the exhibition of such a film.

( 4 ) IT is on record, as mentioned in the application for vacating of the interim order, verified by an affidavit of Rakhohari Banerjee dated 28th June, 1989, that investigation under section 161 of the Criminal Procedure Code was also under way. However, there is no mention either in the F. I. R. or in the application for vacating of the interim order that there has been any exhibition by the writ petitioner of any of e said four seized films or any permission for such exhibition.

( 5 ) THE Cinematograph Act being an old one of 1952, the sections and sub-sections therein are not wholly adapted towards the new situation that has arisen upon widespread introduction of video films into the market. When cinematographic films alone for projection on the big screen were in question, the prohibition against an exhibition itself of an uncertified film or a prohibition against a permission for such exhibition might have suited the needs of the day. Today it so happens that in law the mere stocking of pornographic video cassettes in a shop is not an offence even though this might, be very likely to lead to an exhibition of a film or to the permission for such an exhibition. In a case of criminal nature it is necessary that the actual facts, constituting the ingredients of offence must all be particularly proved arid it is not enough that such facts are merely shown to be extremely likely to occur, or to have occurred.

( 6 ) IN paragraph 7 of the said vacating application it has been stated that the Investigating Officer has seen himself the four video films. Unfortunately what was necessary for at all raising any possibility of an offence was not the Investigating Officer himself seeing any of the films but some allegation, charge or indication, of whatever slight degree, that the said four films had been shown to, or had been permitted to be seen by anybody by the accused-writ petitioner. Even though a long time has passed since the incident yet the respondents have not put on record any facts that came to light prior to the passing of the order dated 14. 8. 88 indicating that the films had been exhibited or permitted to be exhibited by the accused-writ petitioner. Under these circumstances it appears that dicta in the Sanchaita case reported in AIR 1982 SC949 (State of West Bengal and Ors. v. Swapan Kumar Saha and Ors. and State of West Bengal and Ors. v. Sanchaita Investment and Ors) are applicable and that the FIR in question should not be permitted to form the starting point of any investigation by the police at all.

( 7 ) ON 14. 8. 88 an interim order had been passed to the following effect : present the Hon'ble Mrs. Justice monjula BOSE ___________________ august, 14, 1988 in Residence-By Special Assignment at 10. 30 a.